The Rights of the People (59 page)

  
1.
Michigan v. Summers
, 452 U.S. 692 (1981). Whether someone so detained is in custody for
Miranda
purposes is another question. When not physically restrained, some courts have held, the person may not be in custody and therefore may not need to be warned before questioned. See appellants’ brief in
United States v. James Isaac Gaston
, 02-3062 and 02-3063 (D.C. Cir. 2003).

  
2.
Under federal and state laws, assets may be forfeited even before a court has adjudicated the case if there is probable cause to believe either that they are the fruits of a crime, such as drug money, or have facilitated a crime, such as a car to transport narcotics or a house where drugs are manufactured or sold. If criminal charges are brought and the defendant is acquitted, the assets are returned. If no criminal case is filed, the owner must go through a civil action in court to get them back.

  
3.
18 U.S.C. § 922(g). Other categories include fugitives, drug users, those dishonorably discharged from the military, people convicted of misdemeanors involving domestic violence, those deemed dangerous under court restraining order for stalking or domestic violence, and anyone who has renounced his U.S. citizenship.

  
4.
James Otis, in oral argument representing Boston merchants against British writs of assistance, Boston, 1761,
http://www.u-s-history.com/pages/h1204.html
.
Paxton’s Case
, Quincy’s
Mass. Rpts
. 51 (1761). The statement “A man’s house is his castle” is first attributed to Sir Edward Coke in the seventeenth century. John Bartlett,
Bartlett’s Familiar Quotations
(New York: Little, Brown, 1980), p. 172.

  
5.
United States v. James Isaac Gaston
, 02-3062 and 02-3063, (D.C. Cir. 2003), appellants’
brief to U.S. Court of Appeals for the District of Columbia, p. 13. The officer was an Alcohol, Tobacco, and Firearms agent of the Treasury Department, Frank Oliver, Jr.

  
6.
The presence of evidence must be “so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time.”
Sgro v. United States
, 287 U.S. 206 (1932).

  
7.
Illinois v. Gates
, 462 U.S. 213 (1983). The dissenters were Brennan, Marshall, and Stevens.

  
8.
Aguilar v. Texas
, 378 U.S. 108 (1964), and
Spinelli v. United States
, 393 U.S. 410 (1969).

  
9.
Joe Hallinan, “Misfires in War on Drugs,”
Plain Dealer
, Sept. 26, 1993, p. 17A.

10.
Sara Rimer, “Minister Who Sought Peace Dies in a Botched Drug Raid,”
New York Times
, March 28, 1994, p. A1. James Bovard, “No-Knock Entries by Police Take Their Toll on Innocent,”
Christian Science Monitor
, May 24, 1994, p. 18.

11.
John Dillin, “It Was the Perfect Drug Raid … but the Wrong House,”
Christian Science Monitor
, Oct. 1, 1993, p. 6. See also Hallinan,
Plain Dealer
, and Bob Ross, “War on Drugs Takes Toll on Innocent,”
USA Today
, Jan. 11, 1993, p. 1A.

12.
Michael D. Bradbury, “Report on the Death of Donald Scott,” Office of the District Attorney, County of Ventura, March 30, 1993; Kevin G. De Noce, Deputy District Attorney, “Motive Involved in the Trail’s End Ranch Search Warrant,” Office of the District Attorney, County of Ventura, March 31, 1993; John Dillin, “Citizens Caught in the Cross-Fire,”
Christian Science Monitor
, Oct. 1, 1993, p. 6; Dillin, “When Federal Drug Laws Create Havoc for Citizens,”
Christian Science Monitor
, Sept. 28, 1993, p. 10; Debra J. Saunders, “Big Brother Gets Grabby,”
San Francisco Chronicle
, June 25, 1993, p. A24; Haya El Nasser and Jonathan T. Lovitt, “Raid, Slain Recluse: Stuff of Mystery,”
USA Today
, Oct. 19, 1992, p. 3A.

13.
Bill Torpy, “Big Score Holy Grail for Drug Officers,”
Atlanta Journal-Constitution
, Jan. 13, 2007, p. 1A
;
Torpy, “Cop Murder Charges Sought,”
Journal-Constitution
, Feb. 8, 2007; Rhonda Cook, “Police Lied, Informant Says,”
Journal-Constitution
, Nov. 28, 2006, p. 1A; “Web Extra: Gregg Junnier Quotes,” WSBTV, March 6, 2009. All three, Jason R. Smith, Gregg Junnier, and Arthur Tesler, pleaded guilty to federal charges of conspiracy to violate civil rights resulting in death. The first two also pleaded guilty to state charges and were sentenced to concurrent jail terms. Two other officers pleaded guilty to federal charges. “Three Former Atlanta Police Officers Sentenced to Prison in Fatal Shooting of Elderly Atlanta Woman,” Dept. of Justice, Feb. 24, 2009,
http://www.usdoj.gov/opa/pr/2009/February/09-crt-159.html
. “Former Atlanta Police Sergeant Sentenced to Federal Prison for Warrantless Break-in of Private Home,” Dept. of Justice,
http://atlanta.fbi.gov/dojpressrel/pressrel09/atl061909a.htm
.

14.
Radley Balko,
Overkill: The Rise of Paramilitary Police Raids in America
(Washington, D.C.: Cato Institute, 2006).

15.
Bill Torpy, e-mail to author, Feb. 12, 2007.

16.
United States v. Luong
, 470 F.3d 898 (9th Cir. 2006). On appeal, the government conceded that the affidavit did not support probable cause but argued, unsuccessfully, that the evidence should be admitted under the “good faith” exception in
Leon
, discussed below. The Ninth Circuit stated, “The warrant in this case was so lacking in indicia of probable cause that a reasonably well-trained officer
could not have relied on it in good faith.” The appeals court also held that oral statements by the officer to the issuing magistrate, supplementing the sworn affidavit, could not be considered, given the Fourth Amendment’s requirement for “probable cause, supported by Oath or affirmation.” The government had cited cases from other circuits allowing such consideration:
United States v. Legg
, 18 F.3d 240, 243–44 (4th Cir. 1994) and
United States v. Maggitt
, 778 F.2d 1029, 1036 (5th Cir. 1985).

17.
United States v. Martedis McPhearson
, 469 F.3d 518 (6th Cir. 2006).

18.
United States v. Leon
, 468 U.S. 897 (1984). White wrote for the majority; Brennan, Marshall, and Stevens dissented.

19.
Potter Stewart, “The Road to
Mapp v. Ohio
and Beyond,”
Columbia Law Review
83, Oct. 1983, p. 1401.

20.
Ibid., p. 1365.

21.
Craig M. Bradley, ed.,
Criminal Procedure: A Worldwide Study
(Durham, N.C.: Carolina Academic Press, 1999), pp. 85, 105, 195–96, 230, 259, 295. In Germany, evidence can be excluded at the court’s discretion, but not if a judge would have authorized a search. In England, police can be sued for trespass.

22.
Common law, “based on custom and usage,” evolved into an amalgam of Anglo-Saxon and Norman law following William the Conqueror’s invasion of England, in 1066. Though never written, it formed the foundation of court decisions and, most famously, the
Commentaries on the Laws of England
by Sir William Blackstone, from which it entered the statutes of virtually all states “except Louisiana, which is still influenced by the Napoleonic Code.”
http://dictionary.law.com/definition2.asp?selected=248
.

23.
Commonwealth v. Dana
, 43 Mass. 329, 337 (1841). Quoted in Timothy Lynch,
In Defense of the Exclusionary Rule
(Washington, D.C.: Cato Institute, 1998), p. 28,
http://www.cato.org/pubs/pas/pa-319.pdf
.

24.
Weeks v. United States
, 232 U.S. 383 (1914). The unanimous opinion was written by Justice William Rufus Day. It had some antecedants in
Boyd v. United States
, 116 U.S. 616 (1886), a civil forfeiture case, and
Adams v. New York
, 192 U.S. 585 (1904). In
Boyd
, the Court excluded private books and papers illegally seized as a violation of the Fifth Amendment’s bar on compulsory self-incrimination. That meant that personal papers could be suppressed, for example, but not guns or drugs. In
Adams
, however, Day rejected an appeal to suppress gambling evidence regardless of how it was obtained. A decade later in
Weeks
he granted the defendant’s appeal on different grounds: that Weeks had moved for the return of his illegally seized papers rather than their exclusion from trial—a distinction with the same result.

25.
The doctrine was broadened in
Silverthorne Lumber Co. v. United States
, 251 U.S. 385 (1920), which suppressed the entire chain of evidence, even when legally obtained but based on information originating in an illegal search, and in
Agnello v. United States
, 269 U.S. 20 (1925), which excluded evidence seized in a warrantless search of the home of a suspect arrested elsewhere; a warrantless search incident to arrest does not extend to other places.

26.
Wolf v. People of the State of Colorado
, 338 U.S. 25 (1949). The Court found that the Fourth Amendment applied to the states but the remedy of the exclusionary rule did not.

27.
The tactic was ended by the Supreme Court in
Elkins v. United States
, 364 U.S.
206 (1960), a year before applying the exclusionary rule to the states in
Mapp v. Ohio
.

28.
Lynch,
In Defense of the Exclusionary Rule
, p. 26.

29.
Mapp v. Ohio
, 367 U.S. 643 (1961). The ruling was 6–3, with Tom C. Clark writing for the majority and John Marshall Harlan, Felix Frankfurter, and Charles Evans Whittaker in dissent. Police entered a house without a search warrant and found pornography. The appeal by Dollree Mapp argued that the law under which she was prosecuted violated the First Amendment. The Court took the opportunity, raised only in amicus briefs, to overturn
Wolf
. See David M. O’Brien,
Constitutional Law and Politics
, Vol. 2 (New York: Norton, 2003), p. 973, reproducing letter from Potter Stewart to Tom Clark.

30.
Sidney E. Zion, “Detectives Get a Course in Law,”
New York Times
, Apr. 28, 1965, p. 50.

31.
“Evidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.” Military Commissions Act of 2006, 10 U.S. 47A, § 949a (2)(B). The provision was amended in 2009 to read, “Evidence
seized outside the United States
shall not be excluded” [emphasis added]. 10 U.S. 47A, § 949a (3)(A) of 2009.

32.
United States v. Calandra
, 414 U.S. 338 (1974).

33.
United States v. Janis
, 428 U.S. 433 (1976).

34.
United States v. Havens
, 446 U.S. 620 (1980). A decade later, in
James v. Illinois
, 493 U.S. 307 (1990), a 5–4 majority refused to extend the exception to all defense witnesses.

35.
Nix v. Williams
, 467 U.S. 431 (1984). A murder defendant in custody, but not warned of his right to remain silent, disclosed the location of his ten-year-old victim in a ditch. The condition of the body was the issue. His first trial was overturned because of the inadmissibility of his unwarned statement; his second trial, without the statement, was upheld on the grounds that the body’s condition would have been observed when inevitably found by the police during the search of the area. Also,
Segura v. United States
, 468 U.S. 796 (1984), where evidence would have been obtained through independent sources.

36.
Stone v. Powell
, 428 U.S. 465 (1976).

37.
United States v. Leon
, 468 U.S. 897, 929 (1984). Jurisprudence never moves in a straight line, though. In a counterpoint,
Georgia v. Randolph
, 547 U.S. 103 (2006), held that police could not conduct a warrantless search where a resident who is present objects even though another resident consents. A man’s estranged wife gave permission, her husband refused, the police entered anyway, and found cocaine. The Court applied the exclusionary rule, suppressing the evidence. Roberts, Scalia, and Thomas dissented. Alito did not participate.

38.
Arizona v. Evans
, 514 U.S. 1 (1995).

39.
Herring v. United States
07-513 (2009).

40.
United States v. Banks
, 540 U. S. 31 (2003).

41.
Hudson v. Michigan
, 04-1360 (2006). Dissent by Breyer.

42.
“The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary
to liberate himself or a person aiding him in the execution of the warrant.” 18 U.S.C. § 3109.

43.
42 U.S.C. § 1983, 1988(a). Federal law also imposes up to a year in prison for an official found guilty of depriving anyone of constitutional and statutory rights. Prosecutions are rarely brought, however. 18 U.S.C. § 242.

44.
Rowley tried and failed in the summer of 2001 to get headquarters to authorize a search of the computer belonging to Zacarias Moussaoui, an unreliable al-Qaeda operative who was taking flying lessons in Minnesota. FBI suspicions prompted Moussaoui’s arrest on Aug. 17 for overstaying his visa, but agents were uncertain that they had sufficient probable cause to get an ordinary search warrant, so they never applied for one. They preferred a secret warrant under the Foreign Intelligence Surveillance Act, which required probable cause to believe that Moussaoui, a French citizen, was an agent of a “foreign power,” whose definition included a terrorist organization. Although the Minneapolis FBI office obtained information from France of his contacts with a Chechen leader, FBI headquarters did not believe that was enough for a FISA application. See the National Commission on Terrorist Attacks upon the United States,
The 9/11 Commission Report
(New York: W. W. Norton, 2004), pp. 273–76. Moussaoui later pleaded guilty to being part of the 9/11 conspiracy and was sentenced to life. His subsequent motion to withdraw his plea was denied.